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A Protected Strike Can Not Be Converted Into An Unprotected Strike By the Addition of Impermissible Demands

A Protected Strike Can Not Be Converted Into An Unprotected Strike By the Addition of Impermissible Demands

Transport and Allied Workers Union of South Africa obo MW Ngedle and 93 others v Unitrans Fuel and Chemical (Pty) Limited

Constitutional Court of South Africa

Case CCT 131/15

Mogoeng CJ, Moseneke DCJ, Bosielo AJ, Cameron J, Froneman J, Jafta J, Khampepe J, Madlanga J, Mhlantla J, Nkabinde J and Zondo J

September 1, 2016

Reported by Linda Awuor & Kakai Toili

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Labour law – employment law – employment disputes – methods of resolving employment disputes – industrial actions – strikes – protected strikes – essential elements for a protected strike – whether a protected strike could be converted into an unprotected one as a result of the addition of impermissible demands to a permissible demand – Constitution of the Republic of South Africa,1996, sections 23(2)(c), 36 & 213; Labour Relations Act(South Africa) section 64, section 67, section 68(5)

Labour law – employment law – termination and dismissals of employees – factors to consider in termination and dismissal of employees – strikes – protected strikes – whether the dismissals for participating in a protected strike were substantively and procedurally fair – Constitution of the Republic of South Africa, 1996, section 23(2)(c); Labour Relations Act(South Africa) sections 64, 67, 68(5), 193 & 194; Code of Good Practice(South Africa) Schedule 8 Item 6

Brief Facts:

The Respondent entered into contracts with clients in terms of which it transported its clients’ dangerous goods, such as petroleum products, oxygen and liquefied petroleum gas (LPG). The Respondent remunerated its heavy-duty truck drivers who transported its clients’ products commensurately in accordance with how lucrative the contracts they serviced were. The Respondent had a lucrative contract with the Shell Company of South Africa. After the contract terminated, the Respondent transferred its drivers who had been attached to the Shell contract to various other contracts it had with other clients. It then required them to sign new contracts of employment in terms of which their wage rates were reduced. The majority of the drivers signed the new contracts but seven (Shell 7) refused to do so. The Respondent reduced the Shell 7’s wage rates without their consent. That and other complaints led Transport and Allied Workers Union of South Africa (TAWUSA) to make four demands to the Respondents.

One of the demands was that the Respondent restore the Shell 7 to their agreed wage rates and pay them back-pay for the period during which it had paid them at reduced rates. That was referred to as the wage cut demand. Another demand was that the Respondent pay all drivers equally irrespective of the contract to which they were attached. That was referred to as the wage discrepancy demand. The Respondent rejected the demands. It said that the scope of the demands impermissibly exceeded the bounds of the Main Collective Agreement for the Road Freight and Logistics Industry (Collective Agreement) as the demands could not have been dealt with at plant level. Rather, TAWUSA should have taken them up at the bargaining council. A dispute arose concerning the refusal by the Respondent to meet the demands.

The Applicants followed the dispute resolution procedures of the South African Labour Relations Act (LRA) and in due course issued a strike notice. The Labour Appeal Court held that the Applicants could only have struck in respect of the wage cut demand and the wage discrepancy demand, but not in respect of the other two demands (LAC judgment). More than 200 employees went on strike on October 28, 2010. The strike continued until November 1, 2010. The Respondent regarded the strike as unprotected for exceeding the scope of the LAC judgment.

The Applicants regarded the strike as protected as to them the demands fell within the ambit of the LAC judgment. After issuing a number of ultimata calling upon the workers to return to work, the Respondent issued a final ultimatum at 1400 hours on November 1, 2010. The Respondent said that, as a gesture of its goodwill and in order to end the strike, it would restore the Shell 7 to their agreed wage rates and pay them the back-pay. It refused to do anything about the wage discrepancy demand. It called upon the Applicants to return to work at 0600 hours on November 2, 2010 failing which they would be summarily dismissed. The Applicants did not return to work and were dismissed.

In subsequent litigation, the Labour Court held that the strike had been unprotected and dismissed the Applicant’s unfair dismissal claim. The Applicants appealed to the Labour Appeal Court and their appeal failed and thus sought leave to appeal against the second LAC judgment.

Issues:

(i) Whether a protected strike could be converted into an unprotected one as a result of the addition of impermissible demands.

(ii) Whether the dismissals for participating in a protected strike were substantively and procedurally fair.

Relevant Provisions of the Law:

Constitution of the Republic of South Africa

Section 23 – Labour relations

(2) Every worker has the right—

(a) to form and join a trade union;

(b) to participate in the activities and programmes of a trade union; and

(c) to strike.

Section 36 – Limitation of rights

(1) The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including—

(a) the nature of the right;

(b) the importance of the purpose of the limitation;

(c) the nature and extent of the limitation;

(d) the relation between the limitation and its purpose; and

(e) less restrictive means to achieve the purpose.

(2) Except as provided in subsection (1) or in any other provision of the Constitution, no law may limit any right entrenched in the Bill of Rights.

Section 167 – Constitutional Court

3. The Constitutional Court—

(b) may decide—

(ii) any other matter, if the Constitutional Court grants leave to appeal on the grounds that the matter raises an arguable point of law of general public importance which ought to be considered by that Court, and

Labour Relations Act (South Africa)

Section 64 – Right to strike and recourse to lock out

(1) Every employee has the right to strike and every employer has recourse to lock out if-

(a) the issue in dispute has been referred to a council or to the Commission as required by this Act,and-

(i) a certificate stating that the dispute remains unresolved has been issued; or

(ii) a period of 30 days, or any extension of that period agreed to between the parties to the dispute, has elapsed since the referral was received by the council or the Commission; and after that-

(b) in the case of a proposed strike, at least 48 hours’ notice of the commencement of the strike, in writing, has been given to the employer, unless-

(i) the issue in dispute relates to a collective agreement to be concluded in a council, in which case, notice must have been given to that council; or

(ii) the employer is a member of an employers’ organisation that is a party to the dispute, in which case, notice must have been given to that employers’ organisation; or

(c) in the case of a proposed lock-out, at least 48 hours’ notice of the commencement of the lockout, in writing, has been given to any trade union that is a party to the dispute, or, if there is no such trade union, to the employees, unless the issue in dispute relates to a collective agreement to be concluded in a council, in which case, notice must have been given to that council; or

(d) the case of a proposed strike or lock-out where the State is the employer, at least seven days’ notice of the commencement of the strike or lock-out has been given to the parties contemplated in paragraphs (b) and (c).

(2) If the issue in dispute concerns a refusal to bargain, an advisory award must have been made in terms of section 135(3)(c) before notice is given in terms of subsection (1)(b) or (c). A refusal to bargain includes-

(a) a refusal-

(i) to recognise a trade union as a collective bargaining agent; or

(ii) to agree to establish a bargaining council;

(b) a withdrawal of recognition of a collective bargaining agent;

(c) a resignation of a party from a bargaining council;

(d) a dispute about-

(i) appropriate bargaining units;

(ii) appropriate bargaining levels; or

(iii) bargaining subjects.

(3) The requirements of subsection (1) do not apply to a strike or a lock-out if-

(a) the parties to the dispute are members of a council, and the dispute has been dealt with by that council in accordance with its constitution;

(b) the strike or lock-out conforms with the procedures in a collective agreement;

(c) the employees strike in response to a lock-out by their employer that does not comply with the provisions of this Chapter;

(d) the employer locks out its employees in response to their taking part in a strike that does not conform with the provisions of this Chapter; or

(e) the employer fails to comply with the requirements of subsections (4) and (5).

(4) Any employee who or any trade union that refers a dispute about a unilateral change to terms and conditions of employment to a council or the Commission in terms of subsection (1)(a) may, in the referral, and for the period referred to in subsection (1)(a)-

(a) require the employer not to implement unilaterally the change to terms and conditions of employment; or

(b) if the employer has already implemented the change unilaterally, require the employer to restore the terms and conditions of employment that applied before the change.

(5) The employer must comply with a requirement in terms of subsection (4) within 48 hours of service of the referral on the employer.

Section 67 – Strike or lock-out in compliance with this Act

(1) In this Chapter, “protected strike” means a strike that complies with the provisions of this Chapter and “protected lock-out” means a lock-out that complies with the provisions of this Chapter.

(2) A person does not commit a defect or a breach of contract by taking part in-

(a) a protected strike or a protected lock-out; or

(b) any conduct in contemplation or in furtherance of a protected strike or a protected lock-out.

(3) Despite subsection (2), an employer is not obliged to remunerate an employee for services that the employee does not render during a protected strike or a protected lock-out, however-

(a) if the employee’s remuneration includes payment in kind in respect of accommodation, the provision of food and other basic amenities of life, the employer, at the request of the mployee, must not discontinue payment in kind during the strike or lock-out; and

(b) after the end of the strike or lock-out, the employer may recover the monetary value of the payment in kind made at the request of the employee during the strike or lock-out from the employee by way of civil proceedings instituted in the Labour Court.

(4) An employer may not dismiss an employee for participating in a protected strike or for any conduct in contemplation or in furtherance of a protected strike.

(5) Subsection (4) does not preclude an employer from fairly dismissing an employee in accordance with the provisions of Chapter VIII for a reason related to the employee’s conduct during the strike, or for a reason based on the employer’s operational requirements.

(6) Civil legal proceedings may not be instituted against any person for-

(a) participating in a protected strike or a protected lock-out; or

(b) any conduct in contemplation or in furtherance of a protected strike or a protected lock-out.

(7) The failure by a registered trade union or a registered employers’ organisation to comply with a provision in its constitution requiring it to conduct a ballot of those of its members in respect of whom it intends to call a strike or lock-out may not give rise to, or constitute a ground for, any litigation that will affect the legality of, and the protection conferred by this section on, the strike or lock-out.

(8) The provisions of subsections (2) and (6) do not apply to any act in contemplation or in furtherance of a strike or a lock-out, if that act is an offence.

(9) Any act in contemplation or in furtherance of a protected strike or a protected lock-out that is a contravention of the Basic Conditions of Employment Act or the Wage Act does not constitute an offence.

Section 68 – Strike or lock-out not in compliance with this Act

(5) Participation in a strike that does not comply with the provisions of this Chapter, or conduct in contemplation or in furtherance of that strike, may constitute a fair reason for dismissal. In determining whether or not the dismissal is fair, the Code of Good Practice: Dismissal in Schedule 8 must be taken into account.

Section 192 – Onus in dismissal disputes

2) If the existence of the dismissal is established, the employer must prove that the dismissal is fair.

Section 193 – Remedies for unfair dismissal and unfair labour practice

(1) If the Labour Court or an arbitrator appointed in terms of this Act finds that a dismissal is unfair, the Court or the arbitrator may-

(a) order the employer to reinstate the employee from any date not earlier than the date of dismissal;

(b) order the employer to re-employ the employee, either in the work in which the employee was employed before the dismissal or in other reasonably suitable work on any terms and from any date not earlier than the date of dismissal; or

(c) order the employer to pay compensation to the employee.

(2) The Labour Court or the arbitrator must require the employer to reinstate or re-employ the employee unless-

(a) the employee does not wish to be reinstated or re-employed;

(b) the circumstances surrounding the dismissal are such that a continued employment relationship would be intolerable;

(c) it is not reasonably practicable for the employer to reinstate or re-employ the employee; or

(d) the dismissal is unfair only because the employer did not follow a fair procedure.

Section 194 – Limits on compensation

(1) The compensation awarded to an employee whose dismissal is found to be unfair either because the employer did not prove that the reason for dismissal was a fair reason relating to the employee’s conduct or capacity or the employer’s operational requirements or the employer did not follow a fair procedure, or both, must be just and equitable in all the circumstances, but may not be more than the equivalent of 12 months’ remuneration calculated at the employee’s rate of remuneration on the date of dismissal.

Section 213 – Definitions

“strike” means the partial or complete concerted refusal to work, or the retardation or obstruction of work, by persons who are or have been employed by the same employer or by different employers, for the purpose of remedying a grievance or resolving a dispute in respect of any matter of mutual interest between employer and employee, and every reference to “work” in this definition includes overtime work, whether it is voluntary or compulsory;

Schedule 8 – Code of Good Practice: Dismissal

Item 6 – Dismissals and industrial action

(1) Participation in a strike that does not comply with the provisions of Chapter IV is misconduct. However, like any other act of misconduct, it does not always deserve dismissal. The substantive fairness of dismissal in these circumstances must be determined in the light of the facts of the case, including-

(a) the seriousness of the contravention of this Act;

(b) attempts made to comply with this Act; and

(c) whether or not the strike was in response to unjustified conduct by the employer.

(2) Prior to dismissal the employer should, at the earliest opportunity, contact a trade union official to discuss the course of action it intends to adopt. The employer should issue an ultimatum in clear and unambiguous terms that should state what is required of the employees and what sanction will be imposed if they do not comply with the ultimatum. The employees should be allowed sufficient time to reflect on the ultimatum and respond to it, either by complying with it or rejecting it. If the employer cannot reasonably be expected to extend these steps to the employees in question, the employer may dispense with them.

Held by Mhlantla J, Moseneke DCJ, Cameron J, Froneman J and Nkabinde J:

  1. The matter affected the livelihood of 94 individuals and their families. It involved the interpretation of the constitutionally entrenched right to strike and the dismissal of workers whilst exercising their right to strike. The Court had jurisdiction on the basis that the matter triggered a constitutional issue. Jurisdiction was established in terms of section 167(3)(b)(ii) of the South African Constitution on the constitutional court as the case raised an arguable point of law of general public importance which ought to have been considered.
  2. Determining whether the dismissals related to misconduct would have depended on the interpretation of the ambit within which the workers could have withheld their labour. The two demands which related to the wage discrepancies and the wage cuts were authorised by the first Labour Appeal Court (LAC) judgment. The judgment was binding on the parties as there was no appeal against it and its interpretation of the two demands.
  3. The wage discrepancies demand was impermissible from the strike’s commencement as it fell outside the defined ambit of the first LAC judgment. That ensured that substantive wage issues were negotiated at Bargaining Council level and accordingly barred from a negotiation at the plant level. What remained was a consideration of the wage cut demand of the Shell seven workers that the first LAC judgment authorised.
  4. The wage cut demand could not have been described as an increase in wages as there was no cost implication to the employer. The restoration of the terms and conditions of employment would have meant that the Respondent should have paid the Shell seven workers their back pay from the time that the Respondent commenced paying them at reduced rates. That, however, could not have been regarded as a wage increase or cost implication to the Respondent, as it had unilaterally reduced those wages and over a period enjoyed a saving at the expense of the workers who had to endure hardships. It would have had to pay what it should have paid had it not changed the terms and conditions of employment. All that was required from the employer was for it to have restored the status quo ante. That demand was permissible only to the extent that the wage cut demand related to the Shell seven workers.
  5. The inclusion of impermissible demands could not have extinguished the Shell seven workers’ wage cut demand which remained lawful and permissible. Since the Shell seven workers’ demand was lawful and severable from the other demands, the addition of an impermissible demand could not have rendered the Shell seven workers’ demand unlawful.
  6. The right to strike in pursuit of a permissible demand did not evaporate upon the addition of impermissible demands. It was permissible for workers, not directly affected by the demands of a certain group of workers directly affected to have participated in the strike in support of the demands as long as the strike was protected in respect of the workers who were directly affected by the dispute. When the permissible demand was extinguished following the employer’s acceptance of such demand the collective refusal to have worked became unprotected. Similarly, when workers collectively struck in support of a permissible demand, the strike remained protected even though the workers included impermissible demands.
  7. The addition of impermissible demands did not dissolve the lawfulness of the strike based on a permissible demand was subject to one condition, the strike notice notifying the permissible demand to the employer had to set out the issue over which the workers would have gone on strike with reasonable clarity.
  8. The objective of a clear demand was to give the employer proper warning of the strike and an opportunity to take necessary steps to protect the business. It could not have been emphasised enough that the practice of concealing the core nature of a permissible demand could not and should not have been condoned.
  9. A strike was a high-stake exercise that was fraught with difficulty. It was undesirable for both employer and workers that strike action was unnecessarily protracted. A strike was a measure of last resort born of the collective desperation of workers to give their demands force. Negotiations between employers and workers through a trade union or otherwise should have been facilitated as opposed to hindered and should have been approached in good faith by both parties.
  10. The introduction of the impermissible wage cut demand in respect of the other workers did not extinguish the permissible wage cut demand relating to the Shell seven workers because the permissible issue was set out with reasonable clarity in the various strike notices. The strike remained protected by virtue of and within the ambit of the Shell seven workers’ wage cut demand.
  11. The strike was protected from October 28, 2010 until November 1, 2010 when the employer capitulated to the Shell seven workers’ wage cut demand. From that moment, the workers could not have persisted in their conduct of withholding their labour as the other demands were impermissible demands and no longer enjoyed the protection provided by the Shell seven workers’ wage cut demand. Their actions in participating in an unprotected strike from November 1, 2010 amounted to misconduct.
  12. Whether the Respondent fulfilled the demand had to be determined objectively. The subjective motive for fulfilment of the demand could not have undone the fact that the demand was fulfilled.
  13. Schedule 8 of the South African Code of Good Practice provided that a dismissal was unfair if it was not effected for a fair reason and in accordance with a fair procedure. Whether a dismissal was for a fair reason was determined by the facts of the case and the appropriateness of dismissal as a penalty. That was the substantive fairness enquiry.
  14. Item 6(1) of the South African Code of Good Practice on dismissals and industrial action provided that while participation in an unprotected strike amounted to misconduct, that did not automatically render dismissals substantively fair. The substantive fairness of the dismissals had to be measured against inter alia the seriousness of the contravention of the South African Labour Relation Act, the attempts made to comply with the Labour Relations Act and whether or not the strike was in response to unjustified conduct by the employer. Where striking workers engaged in unprotected strike action, the onus rested on the workers to tender an explanation for their unlawful conduct, failing which their dismissal would have been regarded as substantively fair, provided dismissal was an appropriate sanction.
  15. The workers’ unprotected strike following the Respondent’s capitulation in its final ultimatum was impermissible not only for failing to have complied with the provisions of the South African Labour Relations Act, but for failure to have complied with the orders of both the Labour Court and Labour Appeal Court. Strike action in defiance of a court order was a serious contravention of both the court order and the provisions of the LRA. It could not have been condoned barring the existence of exceptional circumstances in favour of the striking workers.
  16. There were no exceptional circumstances that could have remedied the striking workers’ failure to have complied with the applicable court orders to the extent that dismissal would not have warranted an appropriate sanction. It was apparent that the striking workers’ demands other than those relating to the Shell seven workers, exceeded the scope of the first LAC judgment. They fell outside of the ambit of the Collective Agreement. Despite the employer capitulating in respect of the Shell seven workers, the striking workers continued to pursue demands that fell outside of the ambit authorised by the LAC and the Labour Court. That was a serious contravention of the LRA that could not have been condoned. In response to it, the employer’s decision to issue an unequivocal ultimatum was justified.
  17. The employer’s decision to unilaterally reduce the wages of the Shell seven workers could not have borne relevance to the substantive fairness or lack thereof of the dismissals effected after the demand was capitulated to by the employer. Strike action in relation to the employer’s conduct was permissible only to the extent that that action was contemplated by the first LAC judgment. In the absence of the Shell seven workers’ demand, the remaining demands could not have been said to be in response to the employer’s unjustified conduct. That was because they went further than the framework contemplated in the first LAC judgment, and therefore the Collective Agreement.
  18. In determining the appropriateness of a dismissal as a sanction for the striking workers’ conduct, consideration had to be given to whether a less severe form of discipline would have been more appropriate, as dismissal was the most severe sanction available. An illegal strike constituted serious and unacceptable misconduct by a worker. Where an employer had issued an unequivocal ultimatum informing workers engaged in an impermissible strike that their misconduct would result in dismissal, subsequent dismissal had been found to be an appropriate sanction for non-compliance. The dismissals effected in response to the unprotected strike action were substantively fair.
  19. The South African Code of Good practice provided that whether or not a dismissal was procedurally fair would have been determined by referring to the guidelines set out in the Code. The procedural fairness of a dismissal effected in terms of item 6 of the Code of Good Practice on dismissals and industrial action which concerned dismissals effected in response to unprotected strikes was determined in light of item 6(2) of the Code. Item 6(2) provided that when effecting a dismissal within its ambit, the employer had to first contact the strikers’ union at the earliest possible opportunity to discuss the course of action it intended to adopt, if that step produced no result the employer might have issued an ultimatum. Item 6(2) could therefore have been sub-divided into two requirements: first, that the employer should have contacted the strikers’ union and second, that the employer had to issue an ultimatum prior to effecting the dismissals.
  20. The first purpose of item 6(2) of the South African Code of Good Practice on dismissals and industrial action was that at the very earliest opportunity a union official should have been allowed to make representations on behalf of striking workers who were not given an opportunity to make representations individually. Item 6(2) embraced the audi alteram partem principle in the context of a strike dismissal under the provisions of the LRA compelling an employer to engage with the workers’ union. Only once it became clear that the union’s attempts would have proved fruitless or merely sought to extend the strike, the employer might have issued an ultimatum.
  21. When assessing the fairness of an ultimatum, the factors to have been considered were the background facts that gave rise to the ultimatum, the terms thereof and the time allowed for compliance. The Respondent’s first three ultimatums were tendered during the protected strike period and therefore they could not have been given legally binding force, to do so would have allowed employers to flout the protective measures afforded to workers should their strike action have been protected by virtue of compliance with the legislative requirements.
  22. Item 6(2) of the Code of Good Practice on dismissals and industrial action was clear. It demanded compliance prior to dismissal, presuming that an employer had already established that the workers’ misconduct deserved dismissal. That was the substantive fairness enquiry in item 6(1) on dismissals and industrial action. An employer had to first establish, in accordance with item 6(1), that the workers’ conduct was deserving of dismissal. Only after an employer had done so, might have turned to item 6(2), which prescribed how the dismissal was to be effected in a procedurally fair manner. The contention that an employer could have presumed eventual non-compliance with item 6(1) and sought to bolster its compliance with item 6(2) by issuing an ultimatum during protected strike action was unsustainable.
  23. An ultimatum tendered during protected strike action was not legally binding on striking workers, as their dismissal at that point would have amounted to a serious contravention of the LRA. The first three ultimatums could not have been considered in determining whether the Respondent acted in a procedurally fair manner.
  24. Item 6(2) of the Code of Good Practice on dismissals and industrial specifically required that an employer should issue an ultimatum in clear and unambiguous terms that should have stated what was required of the workers and what sanction would have been imposed if they did not comply with the ultimatum. The ultimatum clearly informed striking workers that their failure to resume their normal duties at the specified time would have resulted in summary dismissal, barring the making of representations, of which there were none. To prevent uncertainty in the minds of the workers regarding the finality of the ultimatum, which may have been created as a result of the Respondent having tendered three ultimatums during the period in which the strike action was permissible, the Respondent emphasised the finality of the ultimatum. The terms of the ultimatum reflected those terms specified in item 6(2). Accordingly, the procedural fairness of the dismissals had to turn on the period of time afforded to the striking workers by the Respondent.
  25. It had been held to be unreasonable to have expected strikers to resume work in too short a time. A reasonable time ultimately would have depended on the circumstances, but an ultimatum should have afforded the strikers a proper opportunity for obtaining advice and taking a rational decision as to what course of action to have followed.
  26. It was apparent that the period of time conferred by the ultimatum had to be viewed in light of the conditions prevailing at the time it was issued. The time period conferred by an ultimatum had to be viewed in the context of whether the ultimatum provided an adequate opportunity for the workers involved to have engaged with its contents and responded accordingly. That was in line with item 6(2) on dismissals and industrial action of the Code encompassing the audi alteram partem principle, which extended into the terrain of unprotected strike action. The importance of conferring an adequate period of time for both parties to the dispute to have cooled-off had to be emphasised. An adequate cooling-off period ensured that an employer did not act in anger or with undue haste and that in turn the striking workers acted rationally having been given the opportunity to have reflected.
  27. The only legal ultimatum was the one that was issued on November 1, 2010. That was because the other three had been issued whilst the strike was protected and at that stage the workers were entitled to have ignored them. The strike became unprotected at 1405h on November 1, 2010, that was, upon the Respondent capitulating to the Shell seven workers’ demand. The ultimatum continued to provide unequivocally that the striking workers should have returned to work and resumed their normal duties by 0600h on November 2, 2010. Failure to have done so, the ultimatum continued and would have resulted in the workers being summarily dismissed unless the Appellants provided the Respondent in writing with reasons before expiry of the ultimatum showing that their strike action was lawful and why they should have not been dismissed.
  28. The Appellants effectively had three working hours to have considered the ultimatum, reflected on the situation and responded. The time provided by the Respondent was insufficient to have enabled them to have done that. The ultimatum failed to have afforded the workers an adequate period of time to have considered its contents and respond accordingly, which the audi alteram partem principle demanded. Given the complexity of the matter, the fact that the strike action had been protected and that the employer only capitulated in respect of the Shell seven workers’ demand in the same ultimatum, a period of just under 16 hours (effectively three working hours) could not have been regarded as sufficient to have justified the Respondent’ actions in dismissing the Appellants. It followed that the dismissal of the workers was procedurally unfair.
  29. In terms of section 193(2) of the South African Labour Relations Act on remedies for unfair dismissal the Labour Court had to order that unfairly dismissed workers be reinstated or re-employed, barring where the conditions in subsections (a)-(d) were fulfilled. Should any of the conditions have been fulfilled, then the Labour Court was not obliged to have ordered that the workers be reinstated or re-employed, but might have ordered any form of relief specified in section 193(1) on remedies for unfair dismissal, which in addition to reinstatement and re-employment, contemplated the payment of compensation to the workers by the employer.
  30. The dismissals were unfair on grounds of procedural fairness which sections 193(2) (d) on remedies for unfair dismissal and unfair labour practice and section 194(1) on limits on compensation specifically contemplated. It was inappropriate that an order of reinstatement or re-employment be given pursuant to section 193(2). A remedy had to be fashioned in terms of section 193(1) read with section 194(1) should an award of compensation be made.
  31. The issue of remedy had to be determined by the Labour Court, which would have regard to all the relevant issues which might have included the question relating to the interests of justice, delay in proceeding with the appeal in the LAC and re-employment or otherwise of the workers. The Court was not adequately placed to have considered the issues, even more so with a remedy having to be fashioned in terms of sections 193(1) on remedies for unfair dismissal and unfair labour practice and section 194(1) on limits on compensation, the latter requiring that any award of compensation made be just and equitable in all the circumstances. It was more appropriate that the matter be considered by a specialist court which would have been able to have investigated and interrogated the circumstances of each worker and determine an appropriate remedy. It was therefore in the interests of justice that the matter be remitted to the Labour Court to fashion an appropriate remedy in terms of sections 193(1) and 194(1).Zondo J, Mogoeng CJ, Bosielo AJ, Khampepe J and Madlanga J concurring (Jafta J only concurring in the order)
  32. The Court had jurisdiction and leave to appeal should have been granted. It should have been taken into account that both the Applicants and the Respondent wanted the appeal to be disposed of on the merits. Indeed, the LAC might have taken it into account but did not grant condonation and the reinstatement of the appeal because it took the view that the appeal had no prospects of success.
  33. Had the Labour Appeal Court taken the view that there were reasonable prospects of success for the appeal, it would probably have granted condonation and reinstated the appeal. That had to be so because it did consider part of the merits of the appeal.
  34. The Labour Appeal Court failed to consider that even if it was held that the Applicants’ strike was unprotected, their dismissal was both substantively and procedurally unfair. That was a serious misdirection that weighed heavily in favour of granting the Applicants’ leave to appeal, that was because that meant that there was an important part of their appeal which had been left undecided. That part of the appeal would have remained undecided if leave to appeal was refused.
  35. There were reasonable prospects of success for the Applicants’ appeal not only in relation to showing that their dismissal was unfair but also in showing that the dismissal was automatically unfair. That would be by reason of the dismissal having been a dismissal for participation in a protected strike. The Labour Appeal Court may have overlooked its own previous decisions relevant to the legal status of the strike in coming to the conclusion that the strike was unprotected and that, if effect was given to those decisions, the conclusion might have been reached that the strike was either largely or wholly protected. The appeal had reasonable prospects of success.
  36. The strike was protected throughout and the individual Applicants and the other workers were dismissed for participation in a protected strike. Even if the strike could have been said to have become unprotected at about 1600h or so on November 1, 2010 and the individual Applicants could have been said to have participated in an unprotected strike between 1600h on November 1, 2010 and 0600h on November 2, 2010, the reason for the dismissal would still have been predominantly for participation in a protected strike and would still have been predominantly automatically unfair. The remedy itself should have been granted and that remedy was reinstatement.
  37. Section 23(2)(c) of the South African Constitution on labour relations entrenched every worker’s right to strike. The South African Labour Relations Act (LRA) gave effect to that and other rights. Section 64 of the LRA on the right to strike and recourse to lock out conferred upon every employee the right to strike if certain conditions or requirements set out in that provision had been satisfied. The term issue in dispute referred to in section 64(1)(a) was defined in relation to a strike or lock-out as meaning the demand, the grievance or the dispute that formed the subject matter of the strike or lock-out. The word dispute was defined as including an alleged dispute. There was only one requirement which the parties were not agreed had been satisfied in order to have rendered the strike protected.
  38. Section 213 of the South African Labour Relations Act on definitions, defined a strike as the partial or complete concerted refusal to work, or the retardation or obstruction of work by persons who were or had been employed by the same employer or by different employers for the purpose of remedying a grievance or resolving a dispute in respect of any matter of mutual interest between employer and employee and every reference to work in the definition included overtime work whether it was voluntary or compulsory.
  39. There were four elements or components that made up a strike under the South African Labour Relations Act. In parlance people called every collective stay-away from work or work-stoppage a strike. Under the LRA a strike had to have the four elements. These were:(a)a partial or complete concerted refusal to work or retardation or obstruction of work,(b)by persons who were or had been employed by the same employer or by different employers,

    (c)for the purpose of remedying a grievance or resolving a dispute,

    (d)in respect of a matter of mutual interest between employer and employee.

  40. One should not have talked about a strike in support of a certain demand because, in terms of the definition of the word strike, a strike already included a demand. One should have spoken of a collective refusal to work in support of a certain demand or in pursuit of a certain demand.
  41. In Afrox Ltd v SA Chemical Workers Union and Others (1) (1997) 18 ILJ 399 the Labour Court enunciated a principle that if a group of workers had a dispute with their employer that directly affected them and they had complied with the statutory requirements that had to be satisfied in order for them to have been entitled to strike, not only would they have been entitled to strike but also their colleagues who were not directly affected by the dispute would have been entitled to withhold their labour in support of the demands of the group that was directly affected by the dispute. The principle would have been referred to as the worker solidarity principle because the workers who were not directly affected by the dispute but were, nevertheless entitled to have withheld their labour did so in solidarity with their colleagues who were directly affected by the dispute. The worker solidarity principle was crucial to the determination of the question whether the individual Applicants were entitled to take part in the strike in this case.
  42. The wage cut demand permitted by the first LAC judgment was limited to the Shell 7. However, the fact that the Applicants expanded the wage cut demand to include other workers in addition to the Shell 7 did not mean that the correct wage cut demand was no longer on the table. It remained part of the expanded wage cut demand. The Respondent was entitled at any stage to take the position that it would have complied only with the wage cut demand relating to the Shell 7. The demand that the Shell 7 be restored to their agreed wage rates and that their full backpay for the period starting from February or March 2009 be paid was never abandoned. As long as the wage cut demand in relation to the Shell 7 had not been abandoned and had not been complied with, the Shell 7 were entitled to have withheld their labour from the Respondent. As long as the Shell 7 were entitled to withhold their labour in support of the wage cut demand, in terms of the worker solidarity principle the rest of the workers, including the individual Applicants were entitled to have withheld their labour from the Respondent in solidarity with the Shell 7.
  43. As at October 28, 2010 the issue in dispute in the form of the wage cut demand had been referred to the conciliation process that had failed to produce an agreement between the parties and a certificate of outcome had been issued. A strike notice had been given to the Respondent and the prescribed 48 hours written notice had expired by 1430h. The Shell 7 were entitled as at that time to have collectively withheld their labour in pursuit of the wage cut demand. The fact that the Shell 7 were entitled to have withheld their labour meant that on the basis of the worker solidarity principle, the rest of the workers including the individual Applicants were entitled to have withheld their labour in pursuit of the wage cut demand in respect of the Shell 7. Therefore, the strike that commenced at 1430h on October 28, 2010 was a protected strike. The strike continued on October 29, 30, and 31 and on November 1.The strike was protected from beginning to end and its legal status never changed.
  44. Where concerted refusal to work was resorted to in support of a demand made by a trade union or workers to an employer, the employer would have needed to comply fully and unconditionally with the demand in order for a protected strike to have turned into an unprotected strike. Once the employer had remedied the grievance or complied with the demand or once the dispute had been resolved, the workers might not have continued with their concerted refusal to work because the purpose for which they would have been entitled to withhold their labour would have been achieved. Any continued refusal to work would lack an authorised purpose and therefore the strike would have been unprotected.
  45. Another way in which a protected strike would have ceased to be protected would have been if the union or employees abandoned the authorised purpose of the concerted refusal to work and sought to achieve a different purpose that was not authorised. Another way would have been if the employer and the union or workers were to reach an agreement that settled the dispute even if the employer had not complied fully and unconditionally with the original demand of the union and the workers. Absent any of those methods of turning a protected strike into an unprotected strike, a protected strike remained protected.
  46. The Respondent made a promise or undertaking to restore the Shell 7 to their agreed wage rates, including increases and to pay their backpay since their transfer from the Shell contract. However, it made that promise or undertaking as a gesture of goodwill and in order to end the strike. That meant that the Respondent made the promise not because it accepted that it had unilaterally changed a term or condition of employment of the Shell 7 or that from February or March 2009 when the Shell 7 were transferred from the Shell contract, it had been in breach of their contracts of employment and was obliged to have restored the Shell 7 to their agreed wage rates and to have paid them their backpay. It did not accept liability to have restored the Shell 7 to their contractually agreed wage rates and to have paid them the back pay that it was legally obliged to pay them.
  47. The phrase as a gesture of goodwill had the same legal status as the phrase ex gratia as in an ex gratia payment. A person who made an ex gratia payment to someone else did not accept liability to make that payment but made it as a favour. The South African Concise Oxford Dictionary explained the term ex gratia with reference to payment as something done from a sense of moral obligation rather than because of any legal requirement.
  48. The Applicants never asked the Respondent to meet their demands as a friendly gesture or out of its goodwill. In effect the Respondent was making an offer of settlement to the Applicants and it was not obliged to have accepted. The Respondent was not acceding to the Applicants demands as it stood. It sought to make an offer as a gesture of goodwill and in order to end the unlawful strike action.
  49. If the Applicants had accepted that promise and the basis on which it was made, namely, as a gesture of goodwill and not as an acceptance of legal liability that would have been prejudicial to their rights. Once the Applicants had accepted that offer, the Respondent could then have called upon the workers to return to work and they would have been obliged to return to work. Before they had accepted the offer made on the basis of a gesture of goodwill the Respondent had no right to have called upon the workers to return to work or to resume their duties and they were not obliged to have returned to work. The promise made by the Respondent as a gesture of goodwill and in order to end the strike did not in law have the effect of changing the status of the strike. The strike remained protected.
  50. The Respondent promised the Applicants that they would be put on the initial wage rates as a gesture of its goodwill and in order to end the strike. That meant that, whereas, prior to that promise, the Shell 7 had a contractual right to be on those wage rates, if they accepted the Respondent’s promise, the basis for their continued presence on those wage rates would no longer have been their contractual rights but it would have been the Respondent’s goodwill.
  51. Whereas the Applicants embarked upon a collective refusal to work in order to put pressure on the Respondent to honour its contractual obligations that were enforceable in a court of law, the Respondent promised them a benefit that was not based on an enforceable right in law but something based on its goodwill that could not have been enforced in law. If the Applicants had accepted the Respondent’s promise, they would not have got what they had demanded but would have been short-changed. Therefore, the basis upon which the Respondent made its promise showed that it was not giving the workers what they were demanding.
  52. If the Applicants had accepted the Respondent’s promise and the Shell 7 were then placed on the agreed wage rates but no longer because they were contractually entitled to be on those wage rates but because of the Respondent’ goodwill, they would have lost a justiciable contractual right to be on those wage rates and accepted a regime to be there at the pleasure of the Respondent. The basis upon which the Respondent made its promise was enough to have justified the conclusion that the promise could not have and did not change the protected strike into an unprotected strike.
  53. It was uncertain whether the Respondent’s statement that it would have reinstated the wage rates of the Shell 7 had the effect of restoring the Shell 7 to the wage rates they enjoyed prior to their transfer from the Shell contract. The uncertainty arose from the fact that it was not known whether at a practical level there were any specific measures or steps that the Respondent was required to have taken in order to have effected their restoration for purposes of future payments. What was certain was that the Respondent’s promise or undertaking to pay the Shell 7 the backpay did not constitute compliance with that part of the wage cut demand that required the Respondent to have paid the backpay. That part of the wage cut demand required the Respondent to actually pay the backpay and not to have promised to pay or to have made a promise to pay it at some stage in the future.
  54. A promise to have paid the backpay did not equate to the payment of the backpay. There was no full compliance with the wage cut demand. If a court ordered an employer to reinstate an employee to his position and pay him his backpay and the employer reinstated him but did not pay him his backpay but promised that he or she would pay it in due course, there was no full compliance with the order of the court. There would only have been full compliance when the employee had actually been paid his or her backpay as well.
  55. The Respondent appeared to have been in too much of a hurry to get the workers back at work with the result that it failed to comply with the wage cut demand in full. Full compliance meant the restoration of the Shell 7 to their wage rates and the actual payment of their backpay. If the Respondent had done that, it would have complied with the wage cut demand and, assuming that the workers could not have continued withholding their labour in pursuit of the wage discrepancy demand, the strike would have ceased to be protected and the Respondent would have been entitled to call upon the individual Applicants and other workers to have returned to work and performed their normal duties.
  56. Until the Respondent had restored the Shell 7 to their agreed wage rates and actually paid them their overdue backpay, it had no right to call upon them and the other workers to return to work and they were not under any obligation to have heeded any such call. That was because where a collective refusal to work was resorted to in support of a certain demand upon an employer, the workers were entitled to have continued to withhold their labour as long as the employer had not complied with that demand. It was only when the employer had complied with the demand or the demand had been abandoned or a settlement agreement had been concluded that the workers’ right to have withheld their labour ceased to exist. Partial compliance with the demand was not good enough. What was required was full and unconditional compliance with the demand.
  57. The onus was upon the Respondent to show that it met or complied with the wage cut demand in full. The result was, therefore, that what the Respondent did in making the promise to have restored the wage rate of the Shell 7 and the promise to pay them their backpay sometime in the future did not interrupt or terminate the protected status of the strike. The strike continued to be protected. The Respondent had no right in law to have issued the final ultimatum to the Applicants and to have called upon the workers to return to work. The Respondent did not dismiss the individual Applicants and the other workers for participating in an unprotected strike but dismissed them for participating in a protected strike, that meant that it dismissed them for exercising their right to strike. That rendered the dismissal automatically unfair.
  58. The Respondent had been in breach of the contracts of employment between itself and each one of the Shell 7 employees and its performance of its obligation was long overdue as the Shell 7 had performed their part of the bargain all along. An employee’s obligation to work and the employer’s obligation to pay the employee the agreed wage are reciprocal obligations. Once an employee had performed the work, the employer was obliged to pay the employee the agreed wage. As long as the employer owed the employee his or her wages or part of his or her wages, the employee was entitled to refuse to work and the employer was not entitled to the services of the employee and had no right in law to have called upon the employee to perform. The Respondent was not entitled to have called upon the Shell 7 in its final ultimatum to perform their obligations until it had performed its long overdue obligations. As long as the Shell 7 were entitled to have withheld their services, the rest of the workers were entitled to have collectively refused to work in support of the demand of the Shell 7. On that basis the dismissal would be automatically unfair.
  59. The Applicants were entitled to have withheld their labour in support of the wage discrepancy demand permitted by the Labour Appeal Court, note had to be taken of the fact that there were different versions of the wage discrepancy demand. The Applicants were not entitled to have withheld their labour in support of a different version of the wage discrepancy demand, they might have withheld their labour because there was no evidence that they were obliged to have worked between 1600h on November 1 and 0800h on November 2 when they were dismissed.
  60. The first LAC judgment did not permit a version of the wage discrepancy demand that entailed an increase in the wages of the workers. It only permitted a version that did not entail an increase in wages of any of the workers. The Applicants’ demand articulated as the wage discrepancy demand was not permitted by the first LAC judgment. Accordingly, the workers, including the individual Applicants, were not entitled to pursue it by way of a collective refusal to work.
  61. Where the employer relied on misconduct on the part of employees to justify their dismissal, the employer bore the onus to have proved the misconduct and to show that dismissal was the appropriate sanction. Section 192(2) of the South African Labour Relations Act on the onus in dismissal disputes provided that if the existence of the dismissal was established, the employer had to prove that the dismissal was fair.
  62. In labour law parlance the term misconduct referred to conduct on the part of an employee that constituted either a breach of the contract of employment or a breach of a workplace rule. Participation in an unprotected strike constituted a breach of the contract of employment of the employees and was therefore misconduct. However, before one could have talked about whether employees took part in an unprotected strike, it had to first be shown that the conduct of the employees constituted a strike.
  63. The definition of the word strike in the South African Labour Relations Act included the phrase concerted refusal to work. That part of the definition as opposed to the reference to the retardation or obstruction of work was the part applicable to a case such as the present where the workers completely refused to work.
  64. It was a basic principle of the law that for employees to have been said to be on strike, they had to have been collectively refusing to work at a time when, in terms of their contracts of employment, they were obliged to be working. If the time when the workers were not working was a time when they were not obliged to be working, they could not have been said to have been on strike except when their conduct constituted an overtime ban. That was why, if workers who took their lunch break from 1300h to 1400h collectively stopped working at 1300h on a particular day and spend their lunch break singing, toy-toying and carrying placards outside of or by the gate of the employer demanding a wage increase, they were not in law engaged in a strike. However, once they did that at a time when they were obliged to work, they would be on strike and if the prescribed statutory procedures had not been followed the strike would have been an unprotected strike.
  65. Other factors that supported the view that the dismissal would still have been predominantly automatically unfair or substantively unfair even if the individual Applicants had been obliged to work between 1600h on November 1 and 0600h on November 2, 2010 and could therefore have been said to have participated in an unprotected strike between 1600h or 1700h on November 1 and about 0600h on November 2, 2010 were the following:(a)For the best part of its duration, the strike was protected(b)The strike was peaceful

    (c)The unprotected strike would have been of short duration

    (d)The strike would have been caused by The Respondent’s unlawful conduct in acting in breach of the contracts of employment between itself and each one of the Shell 7

    (e)Whatever financial loss the Respondent might have suffered could not have been taken into account because it largely flowed from the protected part of the strike

    (f) The workers had complied fully with the statutory procedures required to be followed to have rendered strikes protected and it was only the Respondent’s promise that might have changed the strike from a protected strike to an unprotected strike

    (g)The Respondent had not yet paid the Shell 7 the backpay which it owed them which was a major cause of the strike

    (h)The workers had no bad disciplinary record

    (i) There was no indication that in the past the individual Applicants had ever been involved in any unprotected strike

    (j) In effect the Respondent subsequently condoned participation in the strike by the workers whom it re-employed without giving them even a disciplinary warning

    (k) The Applicants co-operated fully with the Respondent and suspended the commencement of the strike on three occasions:
    i. When the Respondent sought to obtain an interdict from the Labour Court

    ii. When it sought to pursue an appeal to the Labour Appeal Court and
    iii. When Mr Badenhorst was not available and was travelling and the Applicants bona fide believed that the strike was protected.

  66. A strong factor that showed that dismissal was not a fair sanction in the case and would not have been a fair sanction even if the strike had been unprotected was that a few days after the dismissal of the workers the Respondent re-employed every dismissed employee who applied for re-employment but employed them at a lower wage rate than their previous rates. There was no suggestion that upon re-employment the employees were given a disciplinary warning of any kind.
  67. Dismissal as a sanction for misconduct was a sanction of last resort. It had sometimes been referred to as the death penalty. That was said in the light of the harsh consequences it might have had on an employee who was dismissed. For that reason dismissal was only appropriate as a sanction for dismissal in those cases where the misconduct of which the employee was guilty was one that at least the employer considered to render a continued employment relationship intolerable or unacceptable.
  68. A court could not have concluded that workers were participating in a strike unless it first inquired into whether or not they were obliged to work. The first judgment ought to have inquired into the issue. If it had, it would have concluded that the Respondent did not produce any evidence that indicated that the individual Applicants were on the shift that was required to work between 1405h on November 1 and 0600h on November 2. Without that evidence, the conclusion that the individual Applicants were participating in an unprotected strike during those hours was legally unsustainable. In fact it was not known whether the individual Applicants were on a shift that was required to work between 0600h and 1405h on November 1 when the final ultimatum was issued. It might have been that the workers who were supposed to have been working on those shifts were not among the individual Applicants but were some of those who were re-employed after the dismissal.
  69. The dismissal of employees taking part in a protected strike for the operational reasons of a business faced with an ongoing protected strike may have been permissible but in such a case the employer was required to have met a very stringent test. That was so because the law had to protect the workers’ right to have taken part in a protected strike without fear of dismissal for participation in a protected strike disguised as a dismissal for operational reasons.
  70. The Respondent would have had to have followed the statutory consultation process applicable to dismissal for operational requirements if it relied upon operational requirements. Even if the Respondent sought to have justified dismissing the workers on operational requirements, it would have failed and the dismissal would still have been substantively unfair.
  71. The conclusion reached that the dismissal was automatically unfair made it unnecessary to have inquired into whether the dismissal was also procedurally unfair. The position would have been the same even if the conclusion reached was that the dismissal was substantively unfair. That was because, if a dismissal was automatically unfair or substantively unfair, a finding that it was procedurally unfair did not at a practical level grant the employee any additional remedy in addition to the remedy that arose out of the finding that the dismissal was automatically or substantively unfair.
  72. The Labour Court would have granted reinstatement with retrospective effect to the date of dismissal.JAFTA J concurring:
  73. Leave to appeal should have been granted, the appeal upheld, orders of the Labour Court and the Labour Appeal Court set aside and the individual Applicants should have been reinstated. To have held otherwise would have suggested that the contractual term that linked the payable wage-rate to the Shell contract had no force and effect. It appeared that the conclusion that the Shell-7 employees had a contractual right to have been paid at the wage-rate that applied to the Shell contract would have made theirs not a dispute in respect of a matter of mutual interest which was the kind of dispute over which the South African Labour Relations Act permitted workers to strike.
  74. Borrowing from other jurisdictions whose constitutions entrenched fundamental rights, it was declared that constitutional rights conferred without express limitation should not have been cut down by reading implicit restrictions into them. That ought not to have been done so as to have brought those rights in line with either unwritten customary law and the common law or written law like statutes. That was so because the South African Constitution was the supreme law from which all laws derived their validity.
  75. It was the South African Constitution itself that ordained the limitation of rights enshrined in the Bill of Rights by other laws, including statutes if certain conditions prescribed by it were met. It was in that context that without a challenge to the limitations imposed by the South African Labour Relations Act that its limitations were justified, despite the punitive outcomes they introduced for exercising a guaranteed right.
  76. The right to strike was conferred without any limitation and that legislation like the South African Labour Relations Act that limited it had to be construed in a manner least intrusive of the right if the text was reasonably capable of bearing that meaning. What that meant was that in determining whether the strike that started as protected in the contemplation of the South African Labour Relations Act became unprotected at some point, the relevant provisions of the Labour Relations Act, in a manner least intrusive of the right to strike, had to be interpreted.
  77. A good point at which the interpretation process should have started was section 64(1) of the South African Labour Relations Act on the right to strike and recourse to lock out, which prescribed conditions for exercising the right to strike. Apart from recognising that every employee had a constitutional right to strike, the section stipulated conditions which had to be met before the right might have been exercised. First, it obliged the employees to refer the issue in dispute to conciliation under the auspices of the Commission for Conciliation, Mediation and Arbitration (the Commission), established in terms of the Labour Relations Act. The section precluded such employees from going on strike until the Commission had issued a certificate to the effect that the dispute remained unresolved or a period of 30 days had elapsed if the parties did not agree on an extension. Once those conditions were met and the employees had elected to strike, they were required to have given the employer a written notice at least 48 hours before the strike commenced. All those conditions were satisfied hence it was common cause that the strike was protected when it commenced.
  78. The crucial issue for determination was whether at some point the strike became unprotected and as a result the affected employees lost the protections in section 67 of the South African Labour Relations Act on strike or lock-out in compliance with the Act and became vulnerable to dismissal for exercising their constitutional right. Allied to that was the difficult question whether the mere loss of those protections meant that employees should have lost their jobs for exercising a constitutionally guaranteed right. There was no provision in the Labour Relations Act which authorised the abnormality apart from section 68(5) on strike or lock-out not in compliance with the Act. A dismissal like the one imposed constituted punishment. The employees were punished for being on strike. It was not so clear whether the punishment was authorised by the Labour Relations Act and if so whether it amounted to a limitation envisaged in section 36 of the South African Constitution on limitation of rights. For the section permitted limitations of guaranteed rights but not punishment for exercising those rights.
  79. The concept of a protected strike was introduced by section 67 of the South African Labour Relations Act on strike or lock-out in compliance with the Act. That section afforded striking employees protection if their strike complied with Chapter IV of the Labour Relations Act on strikes and lock outs and as a result it was a protected strike. Participation in such a strike did not amount to a delict or breach of contract and civil proceedings might not have been instituted against a person for participating in a protected strike. An employer might not have dismissed employees for participating in a protected strike, even though the employer was not obliged to have remunerated them. Dismissing an employee for taking part in a protected strike constituted an automatically unfair dismissal, for which reinstatement was the appropriate remedy.
  80. What emerged from the text of section 68(5) of the South African Labour Relations Act on strike or lock-out not in compliance with the Act was that the Labour Relations Act did not directly authorise dismissal of employees who were involved in an unprotected strike but did so impliedly. The implication arose from the provision’s recognition that participation in an unprotected strike might have, in appropriate circumstances, constituted a fair reason for dismissal. That suggested that such a dismissal might have been taken to have been substantively fair because it was based on a valid reason.
  81. Since it could not have been gainsaid that section 68(5) of the South African Labour Relations Act on strike or lock-out not in compliance with the Act introduced into the right to strike, the Court was duty-bound to have interpreted it in a manner least restrictive of that right if its language was reasonably capable of bearing that construction. In doing so close attention had to be paid to the language. It had to proceed from the premise that the protections in section 67 on strike or lock-out in compliance with the Act were not available to cases where section 68(5) on strike or lock-out not in compliance with the Act applied. Therefore employees to whom the provision applied were not insulated against dismissal for participating in a strike. That was because those protections were afforded only to the employees who took part in a protected strike.
  82. It did not appear that the language of section 68(5) of the South African Labour Relations Act on strike or lock-out not in compliance with the Act was reasonably capable of a meaning that least intruded into the right to strike. Where it applied, it justified a dismissal for exercising a constitutionally guaranteed right. The punishment of dismissal it permitted had as its consequence, the outcome of disabling a worker from exercising the right to strike because that right might have been enjoyed by only those who were fortunate enough to have been in employment. If one was unemployed, she could not have withheld her labour for the purpose of putting pressure on an employer to have resolved a grievance or a matter of mutual interest.
  83. If the Respondent wanted to render the strike unprotected, it should have tendered to meet both demands. In respect of the second demand, the Respondent was required to eliminate disparities in wages by discontinuing its policy of paying higher wages in lucrative contracts and ensuring that there was parity in wages. The choice was that of the Respondent to have determined the method to be followed to realise parity. It depended on the Respondent to have achieved this goal by either cutting down the wages of employees in lucrative contracts or increasing the wages of the lower earning employees.
  84. Notice was issued so as to have met requirements of section 64(1) of the South African Labour Relations Act on the right to strike and recourse to lock out which imposed pre-conditions for exercising the right to strike. All those conditions were satisfied before the strike commenced on October 28, 2010. Section 64 did not regulate negotiations between the striking workers and their employer during the strike. Nor did the Labour Relations Act prescribe the issues to be covered in such negotiations. It was open to negotiating parties to have raised whatever issues they wished to have placed on the agenda. At those negotiations workers might have even expanded the dispute in respect of which the strike was undertaken. It would have been up to the employer to have rejected the expansion of the demand.
  85. The fact that the dispute was expanded at the negotiations during a strike did not detract from the fact that the strike was pursued in order to have resolved a particular and defined dispute. It was not open to the employer to simply regard the strike as unprotected because the dispute was expanded. What the employer needed to have done to end the strike was to have met the demand encapsulating the dispute that was unsuccessfully conciliated and led to strike. In doing so the employer might have rejected the expanded part of the dispute and confined itself to the part in respect of which the workers were entitled to strike.
  86. The Respondent needed to have met not only the wage-cut demand but also the wage-discrepancy demand. If at the meetings the parties had attempted to expand or alter that demand, the Respondent was entitled to have rejected the attempt. But such attempt did not relieve the Respondent from the obligation to have met the wage-discrepancy demand as defined if it wished to end the protected strike.
  87. The Respondent’s failure to have met the wage-discrepancy demand did not change what was a protected strike into an unprotected one. To have said that the Applicants pursued under the demand something other than what was endorsed was to have overlooked the notice of October 27, and its text. That was the notice that activated the strike and it stated expressly that the Applicants would go on strike in respect of specific demands: the wage-discrepancy demand and the wage-cut demand. There was simply no legal basis for disregarding the contents of the notice. Without it the strike could not have been protected.
  88. If the Applicants had failed to issue the notice and had relied on statements alluded to it at the various meetings, the strike could have been unprotected. There was no basis for regarding what was said at negotiations as having altered the nature of the strike from being protected to an unprotected strike. There were no grounds also for holding that what rendered the strike protected was wage-cut demand only.
  89. Determining the demands in respect of which the Applicants went on strike with reference only to what it said at negotiations and not the notice of October 27, 2010 lost sight of reality. That reality was that in negotiations parties started by advancing their highest demands and as negotiations proceeded, compromises were made at the end of negotiations each party might have obtained less than what it sought to have achieved. These negotiations like any other negotiations were not regulated by any statutes and no issue was excluded from the agenda.
  90. When the Applicants issued the notice on October 27, 2010 it was exercising a statutory power. The relevant provision authorised employees or their union to have issued notice before commencing a strike action. There was nothing in the provision which suggested, even remotely, that a union which had issued the notice had the power to have varied, amended or altered such notice and least of all done so orally at a negotiation in the meetings. Had the Applicants purported to have altered the notice by advancing a new demand, it would have acted without power. What the Respondent was obliged to do to end the protected strike was to meet both demands on the notice.

Leave to appeal granted, appeal upheld.

  1. Orders of the Labour Appeal Court and the Labour Court set aside and that of the Labour Court replaced with the following: 

    (a)Dismissal of the individual Applicants by the Respondent on November2, 2010 was automatically unfair. 

    (b)Respondent ordered to reinstate each one of the individual Applicants in its employ on terms and conditions of employment not less favourable to him or her than the terms and conditions that governed his or her employment when the individual Applicants were dismissed on November 2, 2010. 

    (c)Order of reinstatement to operate with retrospective effect to November 2, 2010.

  2. Respondent to pay the Applicants’ costs both in the Court and in the Labour Appeal Court.

Relevance to the Kenyan Situation:

The Constitution of Kenya, 2010 under article 41(1) provides that every person has the right to fair labour practices. It goes further under sub-article 2 to provide that every worker has the right to fair remuneration, to reasonable working conditions, to form, join or participate in the activities and programmes of a trade union and to go on strike. Sub-article 3 provides that every employer has the right to form and join an employer’s organisation and to participate in the activities and programmes of an employer’s organisation.

The Labour Relations Act, 2007 under section 76 provides that a person may participate in a strike or lock-out if the trade dispute that forms the subject of the strike or lock-out concerns terms and conditions of employment. Other issues under the said section that entitle one to participate in a strike or lock-out include: the recognition of a trade union, the trade dispute is unresolved after conciliation under the Act or as specified in a registered collective agreement that provides for the private conciliation of disputes and seven days written notice of the strike or lock-out has been given to the other parties and to the Minister by the authorised representative of the trade union.

Section 79 (2) of the Labour Relations Act, 2007 provides that a person does not commit a breach of contract or a tort by taking part in a protected strike or a protected lock-out or any lawful conduct in contemplation or furtherance of a protected strike or a protected lock-out. Section 79 (3) proceeds on to state that an employer may not dismiss or take disciplinary action against an employee for participating in a protected strike or for any conduct in contemplation or furtherance of a protected strike.

Section 79 (4) provides that civil proceedings may not be instituted against any person for participating in a protected strike or a protected lock-out or any conduct in furtherance of a protected strike or protected lock-out. Section 79 (6) provides that an employer is not obliged to remunerate an employee for services that the employee does not render during a protected strike or lock-out.

Kenyan courts have handled various cases touching on protected strikes, for instance in Teachers Service Commission Vs Kenya National Union of Teachers (Knut) & Another Cause 1539 of 2012 the Industrial Court held that It was clear from the text of the notices that the Respondents did not comply with the provisions of section 76 (b) and(c) and section 78 (1) (e) of the Labour Relations Act and that the parties did not go for conciliation either as provided in section 62 of the Labour Relations Act or in their own internal machinery under the recognition agreements. The Court further held that both notices were therefore not in compliance with the law as there were no conciliations that had failed to warrant the issuance of the strike notices. The Court finally held that the strikes were therefore not protected under section 79 of the Labour Relations Act.

This case will go a long way in assisting Kenyan Courts to handle similar issues as the one that faced the South African Constitutional Court more effectively.

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